April 25, 2006

IN THE COMMENTS: A lot of folks are focusing on this: "She legally changed her name in 2004 from Michael to Michelle, and her driver's license lists her as female." They're trying to say the state is locked into a commitment to treat the person as a female. I disagree.

Well, ordinarily, my response would be simple: if they're a male (as the chap in this story appears to be) you put them in the men's block, and if they're female, you put them in the female block. The real question is not what cell block to house him in, it is why on earth the state agreed to amend his driver's license to designate him as a female.

However, general propositions rarely survive impact with conrete cases, in public policy as in law, and this is no exception. Simply put, the driver's license is a problem for me. However silly I might think it to be, the state of Wisconsin has already recognized the validity of this person's transmogrification, and the state has a right to create such a policy. Having recognized (in my opinion mistakenly) the validity of the transgender process - be it chemical, surgical or otherwise - Wisconsin is in a heck of an ethical bind. By validating this process, the state creates a reasonable expectation on the part of the victim that their "choice" will be respected by the state; for the state to now sheepishly declare that its acceptance only goes so far as a driver's license seems entirely unreasonable and unfair.

Thus, in my view, Wisconsin cannot have it both ways. To be sure, it could solve the problem by saying the extremely obvious: if you're a guy, you're a guy, and if you're a doll, you're a doll. But failing that, if Wisconsin recognizes and accomodates "transgenderism" in the context of acceding to a request to change the victim's driver's license, they must similarly acquiesce to the victim's request to be treated as a male in selecting prison quarters.

I think I belong on the United States Supreme Court, but I don't foresee that happening.

Matt, the sentence is in the county jail, not prison--I don't know for sure, but I think he will be relatively safe. Yes, he--as Tyler Durden said, sticking feathers up your butt does not make you a chicken. Likewise, altering your body to look like a woman does not make you one; let the debate commence!

Simon beat me to it already. Why the heck would your state alter the gender description of person on the basis of what?

"She legally changed her name in 2004 from Michael to Michelle, and her driver's license lists her as female. "

I'm not an expert, but pre-operative to me means she still has all the equipment she started with and it's functional.

Given the choice of placing an inmate with a penis and breasts in with the men, where she is possibly prey or in with the women where this likely larger guy is a potential predator, I think you go with the prey alternative.

As a follow-up, I actually went and took a peek at the Wisconsin State Code, and at their equivalent of the DMV, and at first glance, I really can't find anything suggesting that someone can change the gender on their license. So I'm honestly not sure that I understand what the legal basis for the change to the driver's license. Might it have been an ad hoc thing, a judgement call by the agency? Or maybe they're required to trust the validity of federal documents, and so the accomodation involved here is federal, rather than state? I have no idea. What an interesting question!

If the individual passes the 'short-arm" inspection she goes with the male side.

As for getting raped, that will happen no matter what side of the jail this individual ends up on.

What's next? A section for bi-sexuals who can't figure out which sex they like best?

Give me a break! This subject needs to be kept simple. Stick with the obvious truth that will become apparent during the initial strip search and forget how a typical lawyer would try to present it to a jury.

If that was referring to my terminology, I meant "victim" to mean "victim of the pervasive notion that transgenderism is acceptable and should be accomodated through surgery, rather than through therapy." This person is clearly a victim of an overindulgent society which seeks to ratify an individual psychosis as a choice.

It's the drivers' license thing that bothers me. Wisconsin can't have it both ways.

There is a huge difference between accommodating someone with a name change and an F on a driver's license and putting that person in the women's jail or prison. Specifically: the rights and interests of other persons! Imagine being the woman in a cell who is asks to share with a person with male size and musculature and a penis! You're forcing others to bear the burden of an accommodation.

The best solution is to house the person in a separate cell, I would think. I do think the state has the obligation to take precautions against rape (and, obviously, ought to do much more to protect many more inmates who are at risk).

IIRC in some (most) states sex reassignment is contingent on openly living as the other sex for some period of time. The whole thing surgery, new documents etc etc can't be done at once. If this person's goal is the full surgical monty then their jail interlude is apparently at a really inconvenient time.

If it's a short sentence, I'd assume some sort of solitary confinement would be the most appropriate with no mixing with the general population (unless escorted by guards).

I wonder where the commentariat here who don't believe in sex reassigment would put a M2F post operative transexual? Chromosone-wise they're still male, afterall.

Ann,I respectfully disagree with your minimization of the import of the change in the driver's license. A driver's license is issued by the state, and as such, the willingness to change the gender displayed on the license amounts to a formal concession by the state that it is valid and possible to change one's gender. If the state accepts that much, I cannot see how they can construct a rationale for refusing to accept it when it is no longer mere tokenism.

I think this person, "Michael", has every right to feel somewhat aggreived by what amounts to a bait and switch; if "Michael" had been told from the outset that Wisconsin did not recognize the validity of his "choice", he might perhaps have thought twice about going forward with it (or at least, if they had done so anyway, would do so without forcing me into the uncomfortable position of sympathizing with them).

I would have thought that someone who does not want Roe overturned would have greater sympathy for an argument that goes to legitimate and reasonable reliance interests?

That's a difficult question. I don't know what the answer is; my gut feeling would be that it would deter people from engaging in such an "choice" if they knew that they would be incarcerated according to their actual gender rather than their "post-realignment" gender. However, I think it's very unlikely that any state legislature would buy into so extreme a position, so I don't think it would be unreasonable for Wisconsin to decide to house a post-op in the female section. That isn't quite the problem here, though: the problem here is disparate treatment of the same acceptance. Wisconsin has accepted that "Michael" has become "Michelle", and yet is now saying that he must be housed with the men. This just strikes me as being unreasonable; it's a bait-and-switch, insofar as, if you are told by the state that it will resoect your making a certain choice, you have a legitimate reliance interest that said choice will be respected. That's my problem in this situation.

In a way, this is like the Ninth Circus case we were discussing the other day, the school t-shirt case. I don't say that the school can't ban the t-shirt at issue in that case, and I don't say that Wisconsin can't incarcerate "Michael" in a men's prison. But I do say that the school can't ban one side of a debate, and I do say that it is unfair for a state to foster a reliance interest and then snatch it away.

Imagine that on the day that Roe-Casey is overruled, you had an abortion scheduled for 9am eastern time. And your state had never removed its anti-abortion statute from the books. When you are wheeled into the OR at 9:30, what you and your doctor is about to do is legal; but a few minutes later, in downtown Washington D.C., Our Hero reads from the bench the opinion of the court that Roe and its progeny were wrongly-decided, that there is no constitutional right to abortion (he goes on to sarcastically opine that, in light of the opinion, the "contending sides of [the] national controversy [should] end their national division by accepting a common mandate rooted in the Constitution"). In any event, between the time the doctor began to murder the child and the time he gets done, the legal landscape undergoes an earthquake, and what was previously a constitutionally-protected question of choice has just become a felony carrying the full weight of the law. Can you and your doctor be prosecuted?

In those circumstances - and they are hardly far-fetched - I think you can say that you had a legitimate reliance interest that the procedure was legal when you started. Likewise, when Wisconsin agreed to change this man's driver's license, they accepted the proposition that "he" was now a "she". You and I may think that Wisconsin made a huge mistake in doing so, but that was what they did, and in doing so, they fostered what I would think to be a legitimate reliance interest for "Michael" that he would henceforth be treated by the state of Wisconsin as a woman.

Simon: Different requests for accommodation are different, importantly different. If agreeing to the name change and the "F" on the license carried all sorts of additional entitlements, the state would simply have to refuse. Reliance interests depend on context. You can't say I counted on something and therefore I am owed it. You have to analyze all the interests and the reasonableness of the reliance. In this case, the person is asking to impinge on the interests of others. When did those other people lose their rights? They had no say in the driver's license/name change procedures.

I don't quite understand your position. You're saying that the mere presence of a penis and an overly large physique make it automatically threatening to the female inmates "she" would be housed with. But I am not sure why this is so. Women come in all sizes and while yes, penises can be used as weapons, so can lots of other things. I think that the issue here is amount of testosterone. It's testosterone not existence of an additional appendage that tends to make men aggressive and sometimes violent towards women.

The parts about violating a "no contact" restraining order and trying to grab [Officer] Gary's gun seem awfully unfeminine, but perhaps he missed the 'lower incarceration and violence rates' in his Gender Studies classes.

Clothes do not make the man, and they most make definitely do not make the man a woman.

And, secondly, what stops a man from saying "Hey I'm small like a woman and frankly I'd be picked on less and feel safer and more comfortable being jailed with the women." How does he have a less valid claim than I-feel-like-a-woman-and-frankly-I'd-be-picked-on-less-and-feel-safer-and-more-comfortable-being-jailed-with-the women?

Ann:"If agreeing to the name change and the 'F' on the license carried all sorts of additional entitlements, the state would simply have to refuse."

This much, I agree with. However, I would say that this is an argument that the state SHOULD simply have to refuse.

I guess don't see how it's different, let alone importantly different. The operative questions, as it seems to me, are: does Wisconsin recognize that a person can change gender, and at which point does it recognize that process has been completed? Could a reasonable person (assuming, arguendo, that a person tryin to change their gender can be called "reasonable") conclude that when the state agrees to change your driver's license to reflect your "new" gender status, that the willingness of the state to make this change reflects its disposition towards your new gender? Why would the state change the driver's license to say "female" if it did not accept him to be a female?

I mean, if I walk into the BMV here in Indiana, and change the address on my driver's license, I expect the BMV to send future correspondence to my new address. It would not be reasonable for the state to incarcerate me for failing to respond to notices sent to the old address; their willingness to update my driver's license fosters a legitimate reliance interest on my part that they will send future correspondence to the new address. Leaving aside the argument of the rights of other prisoners, what is your argument that this fellow - or anyone in his situation - did not have a legitimate reliance interest that the state now considered him to be a female? How SHOULD a reasonable person interpret the state's willingness to view them as a female for the purposes of an official state document?

None of this, by the way, is to suggest that I think this fellow has a legal remedy available to him. He may do, but I do not know what it is. We're talking about what's morally right as a question of policy, though, and I do feel that he has been put in an unfair position simply because the state of Wisconsin cannot make up its mind what to do about transsexuals. This case - I have no doubt that sooner or later this incident will be a case - is the poster child for the law of unforseen consequences. You say, presumably to resolve the question, that it is unfair on the other inmates; the state perhaps did not foresee this as a consequence when it thought it wise to adopt a touchy-feely policy regarding transsexuals and their driver's licenses. Is that an argument about this chap's expectations and rights though?

Perhaps Wisconsin should build an entirely separate cell block for such people; the additional cost this would incur would act as a strong reminder of the cost of indecision, and a strong incentive to make up their minds definitively.

What a strange debate this is. The conservative (who thinks that transsexuals are weird deviants who should be treated with therapy) is arguing that this man has been victim of an injustice, and the liberal (who presumably does not share my disapprobation of transsexuality and its apologists) is arguing that he's just going to have to suck it up and deal.

Well this social liberal who has no problem with the idea of sex reassignment (though I think it shouldn't be quick or easy) thinks the transexual has to deal. I also think the prison system needs to take extra precautions with their security as a pre-operative transexual in with the general male population is a disaster (easily leading to permanent injury or death) just waiting to happen.

Maybe a compromise, solitary in the women's unit. No cellmate to intimidate and in the general population I really don't think they're going to be too intimidating.

And, secondly, what stops a man from saying "Hey I'm small like a woman and frankly I'd be picked on less and feel safer and more comfortable being jailed with the women." How does he have a less valid claim than I-feel-like-a-woman-and-frankly-I'd-be-picked-on-less-and-feel-safer-and-more-comfortable-being-jailed-with-the women?

As I understand it, that's how juvenile detention works (or at least the way it worked where I grew up). There is a "B Group" primarily for boys and a "G Group" primarily for girls, but smaller boys get lumped into the G Group. I take it you posted that as a reductio, but it's not necessarily an unworkable idea.

I don't understand why you wouldn't do with this person whatever is done with other high risk prisoners. Plenty of prisoners are targets for abuse for all sorts of reasons: appearance, ratting people out, nature of offense, etc. Whatever is done with them should be done with this guy.

He's not a woman. He can't go to a women's prison.

If he "felt" like a dog, could he apply to stay in the animal shelter?

Simon, You make some good points, but it doesn't seem to me that the state should be estopped from treating Labagnara as a man based on her designation on the driver's license. That is to say, did she really rely on that designation when she commited those crimes? (assuming that's the pertinent issue) Of course I would want to do much more research before saying for sure.

Agreed, though that allowing a person to change the gender designation on a driver's license was short-sighted. At first I thought maybe it was done sneakily or fraudulently, then saw on this webpage, that WI accepts, as proof of identity, a "Court order under seal related to the adoption or divorce of the individual or to a name or gender change that includes the person's current full legal name, date of birth and the person's prior name." (emphasis added) This is something they'd better get straightened out.

Ann Althouse said... When did those other people lose their rights? They had no say in the driver's license/name change procedures.

Sure they did...those procedures were established by their elected representatives, and if they don't like it, they can petition their representatives to change the law. That's what bureaucrats always tell me, anyway.

And if women prisoners object to being housed with 'men,' well, they should have thought of that before they broke the law. As another poster put it, don't do the crime if you can't do the time.

Critical, you are wrong. Prisoners may have a diminished set of rights, but what rights they have are not subject to destruction by majoritarian choice. Where do you get the notion that prisoners don't have rights?

CB said..."it doesn't seem to me that the state should be estopped from treating Labagnara as a man based on her designation on the driver's license. That is to say, did she really rely on that designation when she commited those crimes?"

I think what I'm arguing is that the reliance interest involved was that the state's ratification of his sex change gave Labagnara had a reasonable expectation that the state would treat him as a woman. I'm not sure if it's entirely accurate to say that he relied on that designation in deciding to break the law, only that he could reasonably expect that if he did get sent to jail, his choice to change genders would be respected.

Thanks for finding that link, I couldn't find it when I went looking. I think I might call them tommorow to see if they can explain whether it's an agency regulation or if it has statutory basis.

Again, to be clear, as a normative matter, I am not arguing that pre-op transsexuals should be placed in containment facilities appropriate to the gender they wish to be rather than that they are; my point is that the state should not be fostering these reliance interests by implying that it recognizes the validity of transsexuality, and that if it does make the (IMO foolish) choice to do so, it must live with the consequences of the legitimate expectations that its action fosters. If this same situation had happened absent the governmental recognition implied by the driver's license, my sympathy would evaporate.

Michael Farris - I'll take that as a ratification of my previous comment. ;)

Ann, I have to disagree vis a vis the burden on female cellmates. What is more likely -- violence if our feminine-looking friend is housed with the men, or with the women? (Yes, I know that he has behaved somewhat violently, but so have many of the incarerated women...) I think the safest bet is to house him in an individual cell, in the female population. Lowest risk of random violence.

When comes the "right" to be housed in a prison population of only one's same gender? If its a safety issue, I don't think this as breaking it down. If its that members of the opposite gender might see you naked, the separate cell problem largely takes care of that (with some intelligent use of scheduling in the showers).

For me, the primary goal is making prison as safe as possible, not making the inmates as happy as possible. I don't really care much for this person's preference, but I do worry about safety.

"Michael Farris - I'll take that as a ratification of my previous comment. ;)"

I think the difference comes down to what you think of those undertaking sex-reassignment.

If you think (as I do) they're making a legitimate (for them) choice then you expect them to be able to deal with the consequences of that choice (not all of which will be pleasant). One of those unpleasant consequences is a period in which they don't fully fit in as either sex. Someone not fully fitting in with either sex for some period of time doesn't cause me any cognitive dissidence, though I'm sure some people find it icky and/or threatening.

If you think the only explanation for a person to want sex-reassignment is that they're mentally incompetent, and you have some ethics about how to treat the mentally incompetent, you're going to be more solicitous about them in some ways.

I would hope that we both agree that the prison officials need to be aware of the special security issues that go with a prisoner like this and do what they can to minimize risk.

This guy won't last three hours in there. Most of the guys are horny and this is the closest they will come to a real lay.

It's a little like Scott Peterson-- the best luck he ever had was getting the death penalty-- private cell, segregated from the rest of the inmate population, highest security level. If he'd gotten life in prison, then 1) he'd have probably been raped literally dozens of times by now and 2) his life would probably have ended already, in the same way that Jeffrey Dahmer's did.

By the way. I know a female-to-male trans guy, who is on hormones, furry, can often pass as male, but is not planning to get surgery. And is not seeking to get a "male" driver's license, despite the embarrassment of being outed as "female" when asked to show ID, precisely because of a desire not to get incarcerated with men and raped. (This guy is not a criminal, but doesn't have a lot of trust in the US justice system.)